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Indian tribes

July 10 roundup

by Walter Olson on July 10, 2014

  • Supreme Court agrees to hear case in which feds claim right to ignore deadlines for suit-filing because of Wartime Suspension of Limitations Act (WSLA), passed in 1942 [my new Cato post, earlier]
  • As we’ve advised before, don’t run 10K races while your claim of low-speed-crash injury is pending [Philly.com]
  • Incentivizing complaint-filing: State Bar of California pushes “urgency legislation” empowering it to collect $2500 per enforcement action from targets of its efforts against unauthorized practice of law; association of non-lawyer preparers of legal documents calls it “a cleverly designed effort by the Bar to seek additional revenue from non-members of the Bar.” [Dan Walters, Sacramento Bee via KafkaEsq]
  • Feds get earful on Hawaiian tribalization plan [KHON, Indian Country Today, more, earlier]
  • BP: “Legal feeding frenzy continues four years after the spill” [Melissa Landry, The Hayride]
  • Danke schön! “Overlawyered ist übrigens ein vorzügliches Blog, das sehr oft sehr gute Postings hat zu den Irrungen und Wirrungen des US-amerikanischen Rechtssystems” [Lawblog.de comment]
  • There’ll always be a Berkeley: California city requires medical marijuana dispensaries to set aside some product for free use by indigent and homeless [Reason, KCBS]

WashingtonSenatorsNow that we’ll be canceling trademarks of sports teams with disparaging names, here’s one that got away. [Washington Post]

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  • Payday lenders sue federal agencies over Operation Choke Point [Bloomberg News, Business Journals, earlier; more, Funnell]
  • Speaking of those lenders: “California Supreme Court to review ‘rent-a-tribe’ arrangement for payday lenders” [CL&P, more]
  • “If someone starts trying to blame the Global Financial Crisis on ‘de-regulation’, you can stop reading…” [Lorenzo via Arnold Kling]
  • Can we just admit that the feds’ real target in the Credit Suisse case was the bank’s customers? [ABA Journal]
  • Maryland does not approve of Bitcoin [my Free State Notes via Kevin Funnell]
  • Behind Halliburton v. Erica P. John Fund, SCOTUS’s big case on securities class actions, two lawprofs are jousting [Alison Frankel, Reuters, and there's a Cato connection; earlier]
  • For expats, FATCA raises “prospect of being discriminated against as an American for all things financial” [Peter Spiro/OJ; Sophia Yan, Money] More renounce U.S. citizenship [Yahoo] A Canada-based FATCA resource [Isaac Brock Society] Earlier here, etc.

Environmental roundup

by Walter Olson on May 21, 2014

  • Julie Gunlock, from her new book, on killer garden hoses [Free-Range Kids]
  • “EPA and the Army Corps’ ‘Waters of the U.S.’ Proposal: Will it Initiate Regulatory Overflow?” [Samuel Boxerman with Lisa Jones, WLF]
  • Federal rules governing land ownership on Indian reservations ensure waste and neglect [Chris Edwards, Cato]
  • “Zoning’s Racist Roots Still Bear Fruit” [A. Barton Hinkle]
  • Victor Fleischer: Pigouvian taxes on externalities beloved of economists, not so great as actionable policy [TaxProf]
  • So economically and so environmentally destructive, it’s got to be federal ethanol policy [Hinkle]
  • “Regulation Through Sham Litigation: The Sue and Settle Phenomenon” [Andrew Grossman for Heritage on a consent-decree pattern found in environmental regulation and far beyond; Josiah Neeley, The Federalist]

I’ve got a write-up at Cato at Liberty about the federal government’s massive, SWAT-like occupation of the rural Indiana property of Don Miller, a celebrated 91-year-old local collector who has traveled the globe and whose impressive collection of world and Indian artifacts “was featured in a four part series in the Rushville Republican.” Under various treaties and federal laws, mostly dating to relatively recent times, the federal government now deems ownership of many antiquities and Native American artifacts to be unlawful even if collectors acquired them in good faith before laws changed. [WISH (TV), Indianapolis Star, The Blaze.] More: coverage in two more outlets with a flavor very different from each other, Shelby County News (FBI source stresses Miller’s cooperativeness and suggests federal actions were wtih his consent or even at his behest) and National Public Radio (“seized,” “confiscated”)

Related: Richard Epstein at Hoover on Obama Administration plans to prohibit selling your family’s vintage piano or moving it across a state line. And aside from ivory chess sets, the nascent War on Antiques might take a toll of replica firearms [Washington Times]

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October 14 roundup

by Walter Olson on October 14, 2013

  • “Kerr received a 37-page temporary restraining order last Friday which seeks to shut down her [too-popular] haunted house.” [Silver Spring, MD; ABC News]
  • Blockbuster “60 Minutes” on the federal Social Security disability program, if you haven’t seen it yet [CBS; Chris Edwards, Tad DeHaven at Cato; ABA Journal on Kentucky lawyer and more]
  • Chevron complaint against attorney Donziger over Ecuador shenanigans reaches trial Tuesday [Daniel Fisher] More: Michael Goldhaber, American Lawyer (“A Dickensian Cheat Sheet”);
  • Ombudsman on South Dakota Indian foster care case: NPR “reporters and producers tried to push the story beyond the proof that they had. I don’t know why.” [NPR ombudsman]
  • In America we use lawyers for that: “Rabbis Arrested in Plot to Kidnap, Torture Husbands to Force Divorce” [WSJ, CNN] From 1845, a British judge’s exquisitely arch observations on the then state of divorce law [Sasha Volokh]
  • “Salvage company that lost $600M sunken ship case must pay $1M to Spain for ‘abusive litigation’” [ABA Journal]
  • How Canada lost gun freedom [Pierre Lemieux, Liberty and Law]

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Following an Oklahoma Supreme Court ruling, the youngster has been handed over to adoptive couple Matt and Melanie Capobianco, which most likely spells an end to the legal ordeal [CNN, earlier]

Meanwhile, in yet another indication that propositions that are controversial in the rest of the country are uncontroversial in the American Bar Association, the ABA last month endorsed a resolution (PDF) calling for “full compliance” with, and in general uncritically endorsing the operation of, the Indian Child Welfare Act of 1978; reportedly, no dissenting voice was raised.

The New Republic, meanwhile, gives favorable ink to what it calls the “new anti-adoption movement.” While adoption poses plenty of genuine and difficult ethical and policy issues that deserve a full airing (and even the occasional train wreck at its far fringes; reactions here (PDF), here) sloganeering about “reproductive justice” and intimations of false consciousness (“subtle brainwashing”) on the part of birthmothers who choose adoptive homes for their children are likely to obscure the good that adoption can do [Balding/Yan, SSRN via @tylercowen]

Banking and finance roundup

by Walter Olson on September 17, 2013

  • “You can’t prove that favoritism influenced FDIC” in going easy on brass at Chicago bank [Kevin Funnell]
  • Securities and Exchange Commission won’t give up bid for more power in stale cases despite 9-0 SCOTUS loss [my new Cato Institute]
  • Is JP Morgan paying an enforcement price for Dimon’s outspoken criticism of regulators? [Prof. Bainbridge; WSJ (reporting claims that "it took Mr. Dimon too long to shed a combative stance with regulators... In April the bank's two top regulators told Mr. Dimon and his board that they had lost trust in management.")] More on Standard & Poor’s claims that it was targeted for retaliation by federal government [Peter Henning, NYT DealBook, earlier]
  • Judge rules against law passed by Chicago on bank-owned vacant buildings [Chicago Real Estate Daily]
  • Post-merger derivative claims: “Delaware refuses to feed the sharks” [Bainbridge]
  • Payday lending fight pits New York regulator against some Indian tribes [Funnell, Native American Financial Service Association]
  • Stay on the line to learn more about the Verizon/Vodafone deal, or just press the star key to sue now [Daniel Fisher, Forbes]

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September 15 roundup

by Walter Olson on September 15, 2013

  • Falling tree limb injures woman, jury orders city of Savannah to pay $12 million [Insurance Journal]
  • Dept. of Interior mulls lowering threshold for federal recognition of Indian tribes [AP]
  • Section 230: “The Law that Gave Us the Modern Internet, and the Campaign to Kill It” [Derek Khanna, The Atlantic]
  • Interview with false-memory expert Elizabeth Loftus [Slate]
  • “No meaningful costs or downsides” to the Microsoft antitrust case? Really? [Tom Bowden]
  • NSA covertly intervened in standards making process to weaken encryption standards [Mike Masnick, TechDirt] After being rebuffed by public opinion in quest for dragnet surveillance programs, NSA quietly put programs in place through other channels [Jack Shafer; related, Ken at Popehat]
  • Given the limitations of litigation, better not to lament the shortcomings of the NFL concussion settlement [Howard Wasserman]

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Just to be maximally unhelpful

by Walter Olson on September 12, 2013

The United Nations Special Rapporteur on the rights of indigenous peoples, James Anaya, who is also a University of Arizona law professor, weighs in on the tribal side in Baby Veronica case [Office of the High Commissioner for Human Rights, United Nations, earlier] Last year we discussed Mr. Anaya’s scolding of the U.S. government on Indian land claim issues. Just last week another official in the U.N. human rights apparatus upbraided the United States for hesitating to expose acquitted George Zimmerman to double jeopardy in the Trayvon Martin shooting.

Despite the Supreme Court ruling, birthdad Dusten Brown says he “will not voluntarily” return Baby Veronica to adoptive couple Matt and Melanie Capobianco, and the Cherokee tribe has unfortunately given encouragement to his stance [Tulsa World, Michael Schearer, SCOTUSBlog (high court refuses to block adoption)] “Before the hearing [in Tahlequah, Okla.], Cherokee County sheriff’s officials ordered a Tulsa World reporter to leave the third floor of the courthouse, where the hearing was to be held. The Sheriff’s Office then closed the entire courthouse to reporters, yet members of the public were allowed access to the building.” [Tulsa World] Following threats of arrest and pressure from the governor of Oklahoma, Brown has now entered mediation with the Capobiancos [Tulsa World, more coverage]

Meanwhile, although defenders of the Indian Child Welfare Act have tended to applaud its elevation of tribal interests over the best interests of actual children, the Native American Rights Fund, revealing a newfound enthusiasm for the latter, has filed a suit purportedly on Veronica’s behalf arguing that her best interests are not being taken into account in the adoption. And the girl’s biological mother, Christy Maldonado, has announced plans to file a suit asking for parts of the Indian Child Welfare Act to be struck down as unconstitutional. [Associated Press/WCIV, Indian Country Today]

P.S. I do not rush to blame Mr. Brown, who, even if erring, is erring as many of the rest of us would. I do blame the Cherokee authorities, Native American Rights Fund, and others for irresponsibly egging him on as they stake out a maximalist position on behalf of a bad law.

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Free speech roundup

by Walter Olson on July 31, 2013

  • “Bryon Farmer of the Blackfeet Tribe Jailed For Talking About Corruption In Tribal Government” [Ken at Popehat] “Popehat Signal: Vengeful AIDS Denialist Sues Critic In Texas” [same]
  • Persons with federal government contracts can’t give to federal candidates or parties. Too broad? [Ilya Shapiro and Trevor Burrus, Cato]
  • “Together at last! ‘Some US conservatives laud Russia’s anti-gay bill.’” [@jon_rauch on Associated Press re: "propaganda" measure]
  • More on Second Circuit decision ruling scientific conclusions akin to protected opinion for defamation purposes [Digital Media Law Project, earlier]
  • San Antonio bars appointment to its city boards and commissions of anyone who has ever said anything demonstrating bias “against any person, group or organization on the basis of race” or various other protected categories [Eugene Volokh]
  • Cincinnati Bengals cheerleader wins defamation suit holding gossip site operator liable for user comments [Sporting News] Michigan: “Ionia newspaper editor files defamation suit against critics” [MLive, Popehat with a critical view, update at Popehat following dismissal]
  • “Hate speech” at issue: “Twitter releases users’ identities to French authorities after tough legal battles.” [JOLT]

“… and I oppose the Indian Child Welfare Act…..I fought for my right to choose where my child grew up.” [Frances Danger, XOJane, earlier here, etc.]

Cato’s Caleb Brown interviews me for yesterday’s Cato Daily Podcast on the Supreme Court’s recent decision in Adoptive Parents v. Baby Girl [earlier]. More on “constitutional avoidance” and Justice Thomas’s noteworthy concurrence: Will Baude, PrawfsBlawg.

Yesterday, in Adoptive Couple v. Baby Girl, the Supreme Court dodged the constitutional flaws of the Indian Child Welfare Act, instead choosing to rely on statutory interpretation to reverse a lower court’s troubling decision. The very first sentence of Justice Alito’s majority opinion hints at one of the underlying constitutional difficulties with ICWA, its assignment of family-law entitlements by race: “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.” Justice Thomas’s important concurrence points to another reason to doubt the statute’s constitutionality—its ouster of state courts from their traditional supremacy in family law, based on sources of federal authority (such as the Indian Commerce Clause) that have never been recognized as supporting such ouster.

Justice Sotomayor’s dissent has some force in arguing that the majority is departing from the most natural reading of ICWA’s text, as well as Congress’s likely intent, and in particular that it may be casting doubt on some rights of biological, noncustodial Indian fathers that Congress may have intended the law to protect. As Justice Thomas rightly argues, however, today’s ruling makes sense in light of the doctrine of constitutional avoidance, in which the Court construes doubtful laws so as to avoid possible unconstitutionality. Eventually, if not in this case, ICWA’s constitutional difficulties will be back before the Court in a form it can’t evade. My April coverage of the case in Reason is here; background at SCOTUSBlogRadioLab. [cross-posted from Cato at Liberty]

P.S. Feelings run high on both sides of the Baby Veronica controversy. The Christian Alliance for Indian Child Welfare has backed the Adoptive Couple side and seeks reform of ICWA. By contrast, talk show personality Melissa Harris-Perry recently described adoption by non-Indians of kids with Indian blood as “transnational baby-snatching” [MSNBC, at 2:27] Another opposed view: Steve Russell, Indian Country Today ["The enemies of Indian sovereignty understand the 14th Amendment equal protection clause to be their friend."]

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June 15 roundup

by Walter Olson on June 15, 2013

  • “The NYT revisits the Tawana Brawley rape hoax scandal — and Al Sharpton’s role.” [Ann Althouse]
  • Is there any hope of reforming or repealing FATCA, the crazy overseas banking regulation? [Frederic Alain Behrens, SSRN via TaxProf, earlier here, etc.]
  • Urbanophile is no fan of Toronto mayor Rob Ford, but also no fan of the campaign to drive him from office [Aaron Renn]
  • Landlords face legal risk taking on ex-offenders — so where are they supposed to live? [Volokh]
  • When does a strong central state advance individual liberty? Arnold Kling reviews Mark Weiner’s The Rule of the Clan [EconLib]
  • Unenforceability of contract holds back Indian tribes’ prosperity [Terry Anderson]
  • “Oklahoma High Court Nullifies State Tort Reform Law” [WLF, TortsProf, Tulsa World, Reuters, NewsOK, Beck ("the Oklahoma Supreme Court was plainly out of control in Ysbrand, and unfortunately it remains out of control to this day"), Douglas v. Cox]

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This seemed like a big story to me at the time, and it’s gratifying that it also seems like a big story to the editors of the New York Times. Sharon LaFreniere’s above-the-fold story today breaks vital new details about how career government lawyers opposed Obama appointees’ insistence on reaching a gigantic settlement for claims of bias against female and Hispanic farmers in the operation of federal agriculture programs.

On the heels of the Supreme Court’s ruling [adverse to claimants and favorable toward USDA], interviews and records show, the Obama administration’s political appointees at the Justice and Agriculture Departments engineered a stunning turnabout: they committed $1.33 billion to compensate not just the 91 plaintiffs but thousands of Hispanic and female farmers who had never claimed bias in court.

The deal, several current and former government officials said, was fashioned in White House meetings despite the vehement objections — until now undisclosed — of career lawyers and agency officials who had argued that there was no credible evidence of widespread discrimination. What is more, some protested, the template for the deal — the $50,000 payouts to black farmers — had proved a magnet for fraud.

According to the Times report, the settlement drive became “a runaway train, driven by racial politics, pressure from influential members of Congress and law firms that stand to gain more than $130 million in fees.” On the earlier, “magnet for fraud” Pigford settlement, see our coverage here, here, here, here, here, here, etc.

P.S. Plenty of coverage of this story at other blogs, including tributes to Lee Stranahan and the late Andrew Breitbart, whose investigations helped crack the story open. Useful background from Daniel Foster:

As in the original Pigford settlements, the government has literally given plaintiffs and their lawyers more money than they know what to do with. In the case of a $760 million settlement with Native Americans, which career DOJ lawyers argued was more than the government would have to pay even if they lost in court, only $300 million worth of (ridiculously easy to fake) claims were actually filed, leaving the rest of the money to be distributed to “nonprofit organizations serving Native American farmers.” As the story points out, it is not even clear how many such organizations exist — though you can bet any enterprising NGOers reading this are at this very moment pulling a clean copy of the 501(c)(3) application from their files.

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